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chapter ix: The Duty of Men in making Contracts - Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature [1673]

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The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, ed. Ian Hunter and David Saunders, with Two Discourses and a Commentary by Jean Barbeyrac, trans. David Saunders (Indianapolis: Liberty Fund, 2003).

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chapter ix

The Duty of Men in making Contracts

I.Contracts.From the Duties Absolute to those that are Conditional we must take our Passage, as it were, through the intermediate Contracts; 38 for, since all Duties, except those already mentioned, seem to presuppose some Covenant either expressed or implied; † we shall therefore in the next place treat of the Nature of Contracts, and what is to be observed by the Parties concerned therein.

II.The Necessity of  ’em.Now it is plain that it was absolutely necessary for Men to enter into mutual Contracts. For though the Duties of Humanity diffuse themselves far and near thro’ all the Instances of the Life of Man; yet that alone is not Ground sufficient, whereon to fix all the Obligations which may be necessary to be made reciprocal between one and another. For all Men are not endowed with so much Good Nature as that they will do all good Offices to every Man out of meer Kindness, except they have some certain Expectation of receiving the like again: And very often it happens, that the Services we would have to be done to us by other Men are of that Sort, that we cannot with Modesty desire them. Frequently also, it may not become one of my Fortune, or in my Station, to be beholden to another for such a Thing. So that many times another cannot give, neither are we willing to accept, unless that other receive an Equivalent from us; and it happens not seldom, that my Neighbour knows not how he may be serviceable to my occasions. Therefore, that these mutual good Offices, which are the Product of Sociality, may be more freely and regularly exercised, it was necessary that Men should agree among themselves, concerning what was to be done on this side and on that, which no Man from the Law of Nature alone could have assured himself of. So that it was beforehand to be adjusted what, this Man doing so by his Neighbour, he was to expect in lieu of the same, and which he might lawfully demand. This is done by means of Promises and Contracts.

III.Veracity. L. N. N. l. 3. c. 4. §2.With respect to this general Duty it is an Obligation of the Law of Nature, that every Man keep his Word, or fulfil his Promises and make good his Contracts. For without this, a great Part of that Advantage, which naturally accrues to Mankind by a mutual Communication of good Offices and useful Things, would be lost. And were not an exact Observance of one’s Promise absolutely necessary, no Man could propose to himself any Certainty in whatever he design’d, where he must depend upon the Assistances of others. Besides that Breach of Faith is apt to give the justest Occasions to Quarrels and Wars. For if, according to my Agreement, I perform my Part, and the other falsifie his Word, whatsoever I have done or deposited in Expectation of his Performance, is lost. Nay, though I have done nothing as yet, yet it may be a Mischief for me by this Disappointment to have my Affairs and Purposes confounded, which I could have taken care of some other way, if this Man had not offered himself. And there is no reason I should become ridiculous, only for having trusted one whom I took to be an honest and a good Man.

IV.Distinction between what is due on Courtesy or Humanity, and what in particular Contract or Promise. L. N. N. l. 3. c. 4.But it is to be observed, that such Things as are due to me only of Courtesie, differ from those which I can claim on account of a Contract or Promise, in this respect chiefly: That, ’tis true, I may fairly desire the honest Performance of the first: But then, if the other shall neglect my Request, I can only charge him with Rudeness, Cruelty or hard dealing; but I cannot compel him to do me reason either by my own Power or by any superior Authority. Which I am at liberty to do in the latter Case, if that be not freely performed which ought to have been according to an absolute Promise or Covenant.* Hence we are said to have an imperfect Right to those things, but to these our Claim is perfect; as also that to the Performance of the first we lie under an imperfect, but to the other under a perfect Obligation.

V.Obligations different. L. N. N. l. 3. c. 5.Our Word may be given, either by a single Act, where one Party only is obliged; or by an Act reciprocal, where more than one are Parties. For sometimes one Man only binds himself to do somewhat; sometimes two or more mutually engage each other to the Performance of such and such things. The former whereof is called a Promise, the latter a Covenant or Contract.

VI.Promises imperfect. L. N. N. l. 3. c. 5. §6.Promises may be divided into imperfect and perfect. The former is, when we mean indeed to be obliged to make good our Word to him to whom we promise; but we intend not to give him a Power of requiring it, or of making use of force to compel us to it. As, if I say thus, I really design to do this or that for you, and I desire you’ll believe me. Here I seem more obliged by the Rules of Veracity than of Justice; and shall rather appear to have done the promised Service out of a Regard to Constancy and Discretion, than to Right. Of this Sort are the Assurances of great Men who are in favour, whereby they seriously, but not upon their Honours, promise their Recommendation or Intercession, their Preferring a Man, or giving him their Vote, which yet they intend shall not be demanded of them as Matters of Right, but desire they may be wholly attributed to their Courtesie and Veracity; that the Service they do may be so much the more acceptable, as it was uncapable of Compulsion.

VII.Promise perfect.But this is called a perfect Promise, when I not only oblige my self by my Word, but I give the other Party Authority to require at my hands the Performance of what I stipulated, as if ’twere a Debt.

VIII.No Obligation where the voluntary Consent of Parties is wanting. L. N. N. l. 3. c. 6.Moreover, that Promises and Contracts may have a full Obligation upon us to give and to do somewhat, which before we were at liberty not to have done; or to omit that which we had a Power to do, ’tis especially requisite that they be made with our free Consent. For whereas the making good of any Promise or Contract may be accompanied with some Inconvenience, there can be no readier Argument why we should not complain, than we consented thereto of our own accord, which it was in our power not to have done.

IX.Consent express or tacit. L. N. N. l. 3. c. 6. §16.And this *Consent is usually made known by outward Signs, as, by Speaking, Writing, a Nod, or the like; tho’ sometimes it may also be plainly intimated without any of them, according to the Nature of the thing and other Circumstances. So Silence in some Cases, and attended with some Circumstances, passes for a Sign expressing Consent. To this may be attributed those tacit Contracts, where we give not our formal Consent by the Signs generally made use of among Men; but the Nature of the Business, and other Circumstances make it fairly supposable. Thus frequently in the principal Contract, which is express, another is included which is tacit, the Nature of the Case so requiring: And it is usual, in most Covenants that are made, that some tacit Exceptions and imply’d Conditions must of necessity be understood.

X.Who capable of giving Consent. L. N. N. l. 3. c. 6. §4.But to render a Man capable of giving a valid Consent, ’tis absolutely requisite, that he have so far the Use of his Reason, as fully to understand the Business that lies before him, and to know whether it be meet for him, and whether it lie in his Power to perform it; and having consider’d this, he must be capable of giving sufficient Indications of his Consent. Hence it follows, that the Contracts and Promises of Ideots and Madmen (except such whose Madness admits of lucid Intervals) are null and void: And the same must be said of those of Drunken Men,L. N. N. l. 3. c. 6. §4. if they are besotted to that degree as that their Reason is overwhelm’d and stupify’d. For it can never be accounted a real and deliberate Consent, if a Man, when his Brains are disorder’d and intoxicated, shall on a sudden and rashly make foolish Engagements, and give the usual Demonstrations of Consent, which at another time would have obliged him: and it would be a Piece of Impudence for any Man to exact the Performance of such a Promise, especially if it were of any considerable weight. But if one Man shall lay hold on the Opportunity of another’s being drunk, and craftily making an advantage of his Easiness of Temper under those Circumstances, shall procure any Promise from him, this Man is to be accounted guilty of a Cheat and Knavery: Not but that, if, after the Effects of his Drink are over, he shall confirm such Promise, he shall be obliged; and this not with regard to what he said when drunk, but to his Confirmation when sober.

XI.Consent in young Persons. L. N. N. l. 3. c. 6. §5.As for Consent in young Persons, it is impossible for the Laws Natural to determine so nicely the exact Time how long Reason will be too weak in them to render ’em capable of making Engagements; because Maturity of Discretion appears earlier in some than in others; Judgment therefore must be made hereof by the daily Actions of the Person. Though this is taken care for in most Commonwealths, by Laws prescribing a certain Term of years to all in general; and in many Places it is become a commendable Custom to set these under the Guardianship of wiser Men, whose Authority must be had to any Contracts they make, till the other’s youthful Rashness be a little abated. For Persons of this Age, however perhaps they may well enough understand what they do, yet for the most part act with too much Vehemence and Rashness; are too free and easie in their Promises, eager and over confident in their Hopes, proud of being thought generous and liberal, ambitious and hasty in contracting Friendships, and not furnished with prudent Caution and necessary Diffidence. So that he can hardly pass for an honest Man, who makes any advantage of the Easiness of this Age, and would gain by the Losses of young people, who for want of Experience could not foresee, or place a true Estimate thereon.

XII.Mistake in Contracts. L. N. N. l. 3. c. 6. §6.Another Thing which invalidates Consent, and by consequence the Promises and Pacts that are built upon it, is Errour or Mistake; thro’ which it comes to pass, that the Understanding is cheated in its Object, and the Will in its Choice and Approbation. Concerning Error, these three Rules are deligently to be observ’d. (I.) That when to my Promise, some Condition is supposed, without the Consideration whereof I should not have made such Promise; the same shall, without the other, have no Obligation upon me. For in this Case the Promiser does not engage absolutely, but upon a Condition, which not being made good, the Promise becomes null and void. (2.) *If I am drawn into a Bargain or Contract by a Mistake, which Mistake I find, before as we use to say Bulk is broke,39 or any thing done in order to the Consummation thereof, it is but Equity that I should be at liberty to retract; especially if upon the Contract making, I plainly signify’d for what Reason I agreed to it; more particularly, if the other Party suffers no Damage by my going off from my Bargain, or, if he does, that I am ready to make Reparation. But when, as was said afore, Bulk is broke, and the Mistake is not found till the Covenant is either wholly or in part already performed, the Party who is under an Errour cannot retract, any farther than the other shall of Courtesy release to him. (3.) When a Mistake shall happen concerning the Thing, which is the Subject of the Contract, such Contract is invalid, not for the sake of the Mistake, but because the Laws and Terms of the Agreement are not really fulfilled. For in Bargains of this nature, the Thing and all its Qualifications ought to be known, without which Knowledge a fair Agreement cannot be supposed to be made. So that he who is like to suffer Wrong by any Defect therein, either may throw up his Bargain, or force the other to make the Thing as it should be, or else to pay him the Value, if it happen’d through his Knavery or Negligence.

XIII.Guileful Contracts. L. N. N. l. 3. c. 6. §8.But if a Man be drawn into a Promise or Bargain by the Craft and fraudulent Means of another; then the Matter is thus to be considered. (1.) If a third Man were guilty of the Cheat, and the Party with whom the Bargain is driven was not concerned in it, the Agreement will be valid: But we may demand of him who practis’d the Knavery, so much as we are Losers by being deceiv’d. (2.) He who knavishly procures me to promise or contract with him, shall not set me under any Obligation. (3.) If a Man will indeed come freely with a plain* Design to drive a Bargain, but in the very Action shall perceive a Trick put upon him; suppose in the Thing bargain’d for, its Qualities or Value; the Contract shall be so far naught, as to leave it in the Power of him who is deceiv’d, either to relinquish his Bargain, or to require Satisfaction for his Loss. (4.) If unfair Dealing chance to be us’d in some things not essential to the Business, and which were not expressly under regard, this weakens not the Agreement, if, for the rest, it be regularly made; tho’ perhaps one Party might have a Secret and sly Respect to some such thing, at the very time of driving the Bargain, and cunningly conceal’d such his View till the Contract were perfectly transacted.

XIV.Contracts suspicious. L. N. N. l. 3. c. 6. §9.Whensoever Fear is to be consider’d in Promises or Bargains, it is two-fold, and may either be call’d a probable Suspicion lest we should be deceiv’d by another, and this because he is one who is very much addicted to unjust Practices, or has sufficiently intimated his fraudulent Design; or else a panic Terror of the Mind, arising from some grievous Mischief threatned, except we make such a Promise or Contract. Concerning the first Sort of Fear, (or Mistrust rather) these Things are to be observ’d. (1.) He who trusts the Engagements of one who is notoriously negligent of his Word and Troth, acts very imprudently; but, for that Reason only can have no Remedy, but shall be obliged. (2.) When a Bargain is fully made and compleated, and a Man hath no new Reasons to apprehend any knavish Designs from the other Party, it shall not be sufficient to invalidate the Agreement that the other was, on other Occasions before this Agreement, known to have been trickish and deceitful. For since our Knowledge of such his former Behaviour did not prevent our making the Agreement with him, it ought not to prevent our making it good to him. (3.) Where after the Bargain made, it appears plainly that the other Person intends to elude his Part of the Contract, as soon as I have perform’d mine; here I cannot be forced to comply first, till I am secure of a Performance on the other side.

XV.Contracts thro’ Fear. L. N. N. l. 3. c. 7. §11.As for the other Sort of Fear, these Rules are to be observ’d. (1.) If a Man has taken an Obligation upon him, thro’ Fear of Mischief threatned by a third Person, neither at the Instigation, nor with the Confederacy of the Party to whom the Engagement was made, he stands firmly bound to perform what he promis’d. For there appears no Fault in him to whom the Promise was made, which can render him uncapable of acquiring a Right to the Performance of it; on the contrary, he may justly challenge a Requital, in that he lent his Assistance to the other, in warding off the Danger he apprehended from the third Person. (2.) All such Covenants that are made out of Fear or Reverence of our lawful Superiours, or by the Awe we have for those to whom we are very much beholden, shall be firm and good. (3.) Those Bargains which are wrongfully and forcibly extorted from a Man by the Person to whom the Promise or Agreement is made, are invalid, For the Violence he unjustly uses to set me under that Fear, renders him uncapable of pretending to any Right against me on account of such Action of mine. And whereas in all other Cases, every Man is bound to Reparation of what Wrong he shall do to another: this * Restitution to which he is bound is understood as it were to take off any Obligation from such Promise, since if what was promised were paid, it ought to be immediately restored.

XVI.Consent mutual. L. N. N. l. 3. c. 6. §15.Moreover not only in Contracts, but in Promises the Consent ought to be reciprocal; that is, both the Promiser and he to whom the Promise is made must agree in the Thing. For if the latter shall not consent, or refuse to accept of what is offered, the thing promised remains still in the Power of the Promiser. For he that makes an offer of any thing, cannot be supposed to intend to force it upon one that is unwilling to receive it, nor yet to quit his own Title to it; therefore when the other denies Acceptance, he who proffered it loses nothing of his Claim thereto. If the Promise was occasion’d by a Request before made, the same shall be accounted to oblige so long, as till such Request be expressly revok’d; for in that case the thing will be understood to be accepted beforehand; provided yet that what is offer’d be proportion’d to what was desired. For if it be not, then an express Acceptance is requisite; because it may often do me no good to answer my Request by halves.

XVII.Impossible Engagements. L. N. N. l. 3. c. 7.As for the Matter of our Promises and Contracts, it is absolutely necessary, that what we promise, or make a Bargain for, be in our Power to make good, and that so to do be not prohibited by any Law; otherwise we engage our selves either foolishly or wickedly. Hence it follows that no Man is obliged to do Things impossible. But if it be a Thing which at the time of the Bargain making was possible, and yet afterwards by some Accident, without any Fault of the Contracter, became altogether impossible, the Contract shall be null, if there be nothing as yet done in it; but if one Party have perform’d somewhat towards it, what he has advanced is to be restor’d to him, or an Equivalent given; and if this cannot be done, by all means it is to be endeavour’d that he suffer no loss thereby. For in Contracts that is principally to be regarded which was expressly in the Bargain; if this cannot be obtain’d, it must suffice to give an Equivalent; but if neither can this be had, at least the utmost Care is to be taken that the Party undergo no Damage. But where any Man shall designedly, or by some very blameable Miscarriage, render himself uncapable of making good his Part of the Bargain, he is not only obliged to use his utmost Endeavour, but ought also to be punish’d, as it were, to make up the amends.

XVIII.Unlawful Engagements. L. N. N. l. 3. c. 7. §6, 7.It is also manifest, that we cannot set our selves under any Obligation to perform what is unlawful. For no Man can engage himself farther than he hath lawful Authority so to do. But that Legislator who prohibits any Action by a Law takes away all legal Power of undertaking it, and disables any Man from obliging himself to perform it. For it would imply a Contradiction, to suppose, that from a Duty enjoyn’d by the Laws should arise an Obligation to do that which the same Laws forbid to be done. So that he transgresses who promises to do what is unlawful, but he is doubly a Transgressor who performs it. Hence also it follows, that neither are those Promises to be kept, the Observation of which will be mischievous to him to whom they are made; because it is forbidden by the Law-Natural to do hurt to any Man, even though he do foolishly desire it. And if a Contract be made to do some filthy and base Thing, neither shall be obliged to fulfil it. If such filthy Thing be done by one Party pursuant to the Bargain, the other shall not be bound to give the Reward agreed for; * but if any thing be already given on that account, it cannot be demanded again.

XIX.Engagements concerning other men, L. N. N. l. 3. c. 7. §10.And then, it is plain, that such Engagements and Bargains as we shall make of what belongs to other Men are altogether insignificant, so far as they are not ours, but subject to the Will and Direction of others. But if I promise thus; I will use my Endeavour that such a Man (always supposing him to be one not absolutely under my Command) shall do so or no: Then I am obliged by all methods morally possible, (that is, so far as the other can fairly request of me, and as will consist with Civility) to take pains to move that Person to perform what is desired. Nay we cannot promise to a third Man Things in our own possession, or Actions to be done by our selves, to which another has acquir’d a Right, unless it be so order’d, as not to be in force till the time of that other’s Claim is expir’d. For he who by antecedent Pacts or Promises has already transferr’d his Right to another, has no more such Right left to pass over to a third Person: And all manner of Engagements and Bargains would be easily eluded, if a Man after having contracted with one, might be at liberty to enter a Treaty with another, wherein Disposals should be made contrary to the first Agreement, and with which it is impossible this should consist. Which gives foundation to that known Rule, First in Time, prior in Right.

XX.Conditions various L. N. N. l. 3. c. 8. §1.Beside all which it is to be chiefly observ’d concerning Promises, that they are wont to be made positively and absolutely; or conditionally, that is, when the Validity thereof lies upon some Event depending on Chance or the Will of Man.

Now Conditions are either possible or impossible; and the former are subdivided into Casual or fortuitous, which we cannot cause to be or not to be; or Arbitrary, or such as are in the Power of him to whom the Promise is made, that they are or are not comply’d with; or else Mixt, the fulfilling of which depends partly on the Will of the Person receiving the Promise, and partly on Chance.

Impossible Conditions are either such as are naturally or morally so, that is, some Matters by the Nature of Things cannot be done; others by the Direction of the Laws ought not to be done. Such Conditions then as these being annex’d, do, according to the plain and simple Construction of the Words, render the Promise Negative, and therefore null; tho’ it is true it may be so provided by Law, that if to Affairs of great Concernment any such impossible Conditions should be annex’d the Agreement may remain good, rejecting these Conditions as if they had never been made; that so Men may not have busied themselves about that which otherwise can signifie nothing.

XXI.Mediatory Contracts. L. N. N. l. 3. c. 9 §1.Lastly, we promise and contract, not only in our own Persons, but oftentimes by the Mediation of other Men, whom we constitute the Bearers and Interpreters of our Intentions; by whose Negociations, if they deal faithfully by us in following the Instructions we gave, we are firmly obliged to those Persons who transacted with them as our Deputies.

XXII.Conclusion.And thus we have done with the Absolute Duties of Man, by which, as it were, we naturally pass to the Conditional Duties of Men. And these do all presuppose some Human Institution, founded upon an Universal Agreement, and so introduced into the World, or else some peculiar State or Condition. And of this Sort of Institutions, there are three chiefly to be insisted on, to wit, Speech or Discourse, Property and the Value of Things, and the Government of Mankind. Of each of these, and of the Duties arising therefrom we shall next discourse.

[38.]Pufendorf’s term is pacts (pacta), or agreements. Duties in relation to pacts are transitional between the natural and adventitious duties because it is through pacts that men institute the statuses to which these latter duties attach.

[†] Compare herewith the whole Eleventh Chapter of the Second Book of Grotius de Jure, &c.

[*] See Grotius de Jure Belli & Pacis, Lib. 1. cap. 1. §4. seqq.

[*] See Grotius de Jure Belli & Pacis, Lib. II. Cap. 4. §4. Lib. III. c. 1. §8. c. 24. §1, 2.

[*] Provided this Error concerns something essential to the Bargain made; that is to say, that it does necessarily and naturally concern the Affair in hand, or respects plainly the Intention of those who contract, notified sufficiently at such time as the Contract was made: And on both Sides allowed as a Reason without which such Contract had never been made; otherwise, as the Errour had no Influence on the Contract to be made, so can it not disannul it when made, whether it be executed or not. An Example will make the meaning hereof plain. Suppose I imagin that I have lost my Horse and that I shall never recover him again; and buy another, which otherwise I wouldn’t have done: If I happen afterwards, contrary to Expectation, to find my own again, I can’t oblige the Person I bought the new one from to take it again, altho’ at that time he shou’dn’t have sent me the Horse, or have receiv’d the money agreed for: Unless when we bargain’d, I had expressly and formally made this a Condition of annulling such Agreement: For without such formal Stipulation, the Agreement stands good against me, altho’ I might (in way of Discourse only) mention, that I would not have bought this Horse, had I not lost my other. See L. N. N. lib. 3. c. 6. §7. See also Grotius de Jure Belli &. Pacis, lib. 3. cap. 23. §4. [Barbeyrac’s XII.1, p. 147.]

[39.]Roughly, “before the cargo is unloaded.”

[*] See Grotius de Jure Belli & Pacis, Lib. 2. cap. 17. §17.

[*] There was no need to have recourse to this Duty of Restitution, thereby to shew the Invalidity of such Contracts. For the want of Liberty in the Person promising, and the want of Capacity in the Person obtaining by force the Promise, of creating to himself thereby any Right to the Thing promised, are sufficient to shew the plain Nullity of the Agreement thus obtained. [Barbeyrac’s XV.1, p. 152.]

[*] This determination seems not altogether just, because he who had parted with his Goods, had parted with them by an act invalid and of no effect. See L. N. N. l. 3. c. 7. §9. [Barbeyrac’s XVIII.1, p. 155.]